Legal Threats Continue to Fly in New Hampshire Senate Race

Legal complaints have become the new press release in New Hampshire this week, as Republican Senate candidate Scott Brown and his opponents turned to official threats to score political points.

It started Sunday, when New Hampshire Senate candidate Scott Brown threatened to sue Harvard Professor Lawrence Lessig after a outside group he runs called him a “lobbyist” in a campaign mailer, despite the fact that Brown has never registered as a lobbyist. “If you fail to immediately cease the mailer in question, we are leaving all our legal options on the table,” wrote Colin Reed, the campaign manager of New Hampshire for Scott Brown.

Then on Friday, a liberal group, the American Democracy Legal Fund, took its own shot, filing papers with the Senate Select Committee on Ethics requesting an investigation into whether Brown violated federal law by failing to identify certain clients from his work at a law firm in his personal finance disclosure form. The request was signed by Brad Woodhouse, a former spokesman for the Democratic Party, who also runs American Bridge, an opposition research group working to defeat Republican candidates this fall. Brown is down around five points in a tight race against Sen. Jeanne Shaheen (D-N.H.), according to an aggregation of polling data conducted by Real Clear Politics.

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“This is a partisan Democratic group whose purpose is to file frivolous complaints against Republican candidates,” said Brown spokeswoman Elizabeth Guyton. “Their claims have absolutely no merit.”

Neither threat is likely to result in much legal action, but both moves are meant to make headlines. Indeed Brown has seen—and used—similar tactics before. In Brown’s 2012 Massachusetts reelection campaign against Sen. Elizabeth Warren (D-Mass.), Warren and Brown traded barbs demanding that the other reveal his or her legal clients. The American Democracy Legal Fund, meanwhile, has been busy over the last several months, filing other ethics complaints against Republican Senate candidates in Louisiana and North Carolina, which also helped to generate negative news coverage.

The fund’s newest claim, that Brown was required to disclose more about his clients when he worked at the law firm Nixon Peabody, is unlikely to lead to sanctions against Brown, says Norm Ornstein, a congressional scholar at the American Enterprise Institute. There is an exemption under the Ethics in Government Act (EGA) that protects information under attorney-client privilege. “There are two elements here,” says Ornstein. “Senate ethics rules, which it appears do require a listing of clients and services, and the Ethics Act, which requires sources of income but so far as I can tell does not specify law firm clients.”

“The problem with the former is that the Ethics Committee has no real power over former members,” he adds. “It could, in theory, send a letter chastising Brown, but that is all. It is more likely that he has a moral obligation under Senate rules to disclose than a legal obligation under the EGA.”

Lessig has defended his mailer by saying that the legal definition of “lobbyist” under Senate rules was not the one he referenced in the mailer. “According to the Senate, Scott Brown isn’t a ‘lobbyist,'” Lessig wrote in a blog post after receiving the legal threat from Brown’s campaign. “But I submit to anyone else in the world, a former Senator joining a ‘law and lobbying firm’ to help with Wall St’s ‘business and governmental affairs’ is to make him a lobbyist.”